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The People v. Howarth





WRIT OF ERROR to the Circuit Court of Logan County; the Hon. FRANK S. BEVAN, Judge, presiding.


On November 6, 1952, Nelson A. Howarth, an attorney, together with Alan Wyneken and LeRoy Clapper, his clients, were adjudged to be in contempt of court in the filing of a certain petition in the circuit court of Logan County, were each ordered to pay fines, and received separate jail sentences. They appear in this court as plaintiffs in error prosecuting a writ of error to the circuit court of Logan County to review the judgment and orders of that court, urging that the acts with which they were charged do not constitute criminal contempt, and that they have been denied certain constitutional rights. A constitutional question being presented, the cause comes here directly.

It appears from the record that an organization in Lincoln, Illinois, known as the Good Government Council, had caused an audit to be made of the books of one Vincent Jones, justice of the peace in and for East Lincoln Township in Logan County. That audit purported to show discrepancies and omissions in the books of Jones when compared with certain records of the highway police of the State of Illinois. This audit was turned over to Edwin C. Mills, State's Attorney of Logan County. After a delay of about two weeks, nothing having been done by the State's Attorney, several members of the Good Government Council caused a warrant to be issued for the arrest of Jones on a charge of embezzlement. The State's Attorney, by letter to Judge Bevan, judge of the circuit court, requested that he be relieved of the duty of prosecuting Jones. His request was denied and he thereafter presented the evidence to the grand jury. Indictments were returned against Jones on June 4, 1952, who then filed motions to quash the indictments. Hearing on said motions was set for July 23, 1952.

The Good Government Council then retained Howarth to prepare a petition directed to the circuit court requesting the appointment of a special prosecutor. Twenty copies of this petition were circulated and a total of 586 signatures procured. These petitions were assembled and consolidated by removing the first three identical typewritten pages of eight copies, and presented by Howarth to the court on July 21, 1952. Among other things, the petition alleged that the State's Attorney, by informal letter to the court more than a month after issuance of the warrants, admitted that he "had not yet checked the accuracy of the allegations made in said complaint," that he had made no effort to confer with or to interview those citizens who signed the original complaint except to advise them that he intended to withdraw as prosecutor, and that petitioners believed the State's Attorney would use the hearings on the motions to quash, not for the purpose of defending the indictments, but to intimidate, harass and subject to public ridicule certain members of the Good Government Council. The petition prayed that the hearings on the motions to quash the indictments be continued, and that the State's Attorney be permitted to withdraw and a disinterested attorney be appointed to prosecute the causes.

A hearing on the petition was had July 22, 1952. There the State's Attorney asked leave to join in the prayer of the petition, but controverted certain allegations of fact therein. The court took no action on this request, nor on an offer by Howarth to withdraw the petition if the State's Attorney was permitted to withdraw. The petitioners then presented evidence as to the manner of procuring the signatures and as to their belief that the allegations were true. After a colloquy between the court and Howarth concerning the form and allegations of the petition, the court continued the cause to July 30, 1952. On that date Judge Bevan entered an order relieving the State's Attorney from prosecuting the Vincent Jones case, and then read an order on these plaintiffs in error and the other petitioners (578 persons more or less) to appear in the circuit court of Logan County on August 13, 1952, to show cause why they should not be adjudged in contempt of court for (1) having filed in that court a document containing pages taken from altered instruments, (2) having filed a document containing odious and defamatory language concerning an official of that court, and (3) having filed a petition containing an inaccurate quotation where the accuracy of the quotation might materially affect the decision of the court. Judge Bevan refused to disqualify himself.

On August 13, 1952, approximately 500 petitioners and Howarth appeared in court with their counsel. Twelve petitioners filed verified answers denying any knowledge of the petition and were discharged by the court. The court then appointed State's Attorney Claude Swanson of Ford County to act as amicus curiae in the contempt proceedings. The court then discharged twelve more petitioners, who, upon examination by Swanson, stated they did not read the petition before signing it. The court refused to allow Howarth to cross-examine any but one of these twelve. The court subsequently discharged seven others upon their filing verified answers denying knowledge of the contents of the petition.

Howarth and almost all of the petitioners, including Wyneken and Clapper, filed written motions to quash the rule to show cause, based upon the proposition that the acts charged did not constitute contempt of court, that the rule charges indirect contempt requiring that they be served with signed, verified charges, and asserting a denial of certain constitutional rights. These motions were overruled. Motions to suppress the taking of evidence were also overruled. The court then entered a rule on Howarth and all petitioners who had participated in the hearings on July 22, 1952, to plead to the rule to show cause on or before October 8, 1952, and all other petitioners were to plead on or before November 5, 1952. Motion was made to discharge all those who had not appeared in court July 22 as they could not therefore be guilty of direct contempt, but the court overruled the motion.

On October 8 Judge Bevan again refused to disqualify himself and overruled motions for jury trial based on constitutional grounds. Thirty-one defendants, including these plaintiffs in error, then filed answers alleging in detail the acts performed by them in connection with the petition. The remaining petitioners filed an unverified answer denying their guilt.

On November 1, 1952, the court entered its judgment and order. The court found plaintiffs in error to be in contempt for the filing of an "altered" petition in court, which deceived the court and constituted a fraud upon the court and was done by plaintiffs in error with the deliberate intent of intimidating the court and impeding and obstructing the functioning of the court. Howarth was also found guilty of contempt for misquoting the letter of State's Attorney Mills to the circuit court. All other petitioners were discharged. Wyneken and Clapper were each fined $250 and sentenced to two days in jail. Howarth was fined $500 and sentenced to five days in jail.

On November 13, 1952, plaintiffs in error filed a written exception to that part of the judgment reading "from the evidence adduced," as no evidence had been taken against them under the rule to show cause, and filed a motion in arrest of judgment covering the same points urged in the motion to quash previously filed and argued, and additionally objected to the court's refusal to disqualify himself and the denial of a jury trial, questioned the sufficiency of the judgment, and objected to procedural irregularities in the hearing. The exception was overruled and the motion denied.

Plaintiffs in error appear before this court, having been found guilty of direct criminal contempt in the circuit court of Logan County. A criminal contempt of court is a crime against the court and against the people and is a misdemeanor, and a writ of error in such a proceeding is properly sued out of the Appellate Court unless there is fairly involved a debatable constitutional question which was passed upon by the trial court and the issue properly preserved for review by a bill of exceptions. In such case the writ of error may be sued out of the Supreme Court directly. People v. Siegal, 400 Ill. 208.

In the instant case plaintiffs in error claim, as the foundation for direct review, a denial of their constitutional rights to freely express themselves and to petition for a redress of grievances, and violations of the due-process clauses of the State and Federal constitutions. They contend that their constitutional right to freely express themselves was infringed for the reason that the court was obviously influenced in its judgment by what it termed "odious, defamatory language concerning an official of this Court." They insist that the right to petition for redress of grievances was denied by this contempt proceeding against more than 500 citizens of Logan County. Plaintiffs in error further contend that the acts charged in the rule to show cause, if they constituted contempt at all, constitute indirect and not direct contempt, and that they were not accorded the fair hearing with all due process of law as required in an indirect contempt proceeding.

These constitutional issues were raised and passed upon in the trial court when it denied plaintiffs in error their motion in arrest of judgment. (People v. Pomeroy, 405 Ill. 175.) The constitutional issues have properly been ...

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